CHAPTER 5 MINERAL PATENT IMPROVEMENTS
| Jurisdiction | United States |
(Sep 1970)
MINERAL PATENT IMPROVEMENTS
Holme Roberts & Owen
Denver, Colorado
I. INTRODUCTION
This paper is concerned with the $500.00 statutory amount required by Section 29 of Title 30 of the United States Code to be spent on a mining claim before patent will issue. That Section is derived from the Act of May 10, 18721 and has remained substantially unchanged since enactment except that the functions and titles of the officers named in the Act have been changed and amended from time to time. Section 29, as amended, reads in pertinent part as follows:2
The claimant at the time of filing this [patent] application, or at any time thereafter, within the sixty days of publication, shall file with the manager a certificate of the office cadastral engineer that $500 worth of labor has been expended or improvements made upon the claim by himself or his grantors....
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Previous authors have adequately discussed the basic procedure to be followed in filing an application for patent and the administrative procedures connected therewith and there is therefore no need to add further to the literature on that point.3 It is sufficient for the purposes of this paper to note that in addition to the survey, posting, evidence of title, publication, proof of citizenship and statutory fee requirements established as prerequisites to patent, Congress has also deemed it necessary that the applicant provide the necessary proof that not less than $500 has been expended in labor and/or improvements in the development of the claim.
It has been suggested that this paper might best be a discussion of how to get along with the Forest Service and the Bureau of Land Management. But this implies that mining claimants no longer consider taking their claims to patent because they
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are fearful that their entry will be canceled and their claim invalidated by subsequent contest proceedings. Although it is certainly true that the number of patents issued in recent years has drastically declined, the statistics reflect that the total number of acres contained in recent patents remains respectable. For instance, during the fiscal year 1969, 32 patents were issued in all of the United States. But these 32 patents contained 8,366.39 acres.4
Thus, for the courageous, this paper may have some value other than historical.
A. Relation to Annual Assessment Work
The judicial and departmental decisions do not often discuss the differences between the annual assessment work required by Section 28 of Title 30 of the United States Code and the patent improvement work under consideration here. More than likely the lack of discussion on the matter results from
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the way in which the conflicts arise. The matter of the annual expenditure in labor or improvements is a matter between rival claimants and as such is left to a determination by the courts,5 whereas the expenditure of $500 prior to patent is a matter between the patent applicant and the Government, although the question of the propriety of the patent improvements may also arise in a contest to declare a patent fraudulent,6 or in patent protest proceedings.7 Consequently, the case law as to annual assessment work has developed in the state and Federal courts, whereas the precedents in the area of patent improvements are to be found in the decisions of the Bureau of Land Management and the Department of the Interior.8 Generally speaking, the courts have limited their analyses to those cases involving annual assessment work and the Department of the Interior has considered only those matters developed
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within its jurisdiction.9 But the commentators have not so narrowly viewed the situation and have tended to equate the decisions arising under the different procedures, especially in discussions of the character of the work.10
Since a patent applicant is concerned chiefly with how the Department of the Interior will view his application for patent, it is important to him to know how the department views a particular kind of labor or improvement and whether he can merely use that type of improvement and labor which until the time of patent application has satisfied the annual assessment requirement, or whether he must perform new work in excess of $500. Although a few cases consider the matter, the department in those cases has taken the position that there is no difference between the work requirements of Sections 28 and 29. In the case of Copper Glance Lode 11 it stated, after discussing many previous department and
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court decisions, that:
It is true that most of the cases above referred to relate chiefly to the annual expenditure in labor or improvements required by section 2324 of the Revised Statutes. Manifestly, however, in determining the character and purpose of labor and improvements had upon a mining claim, with respect to their use in the development of the claim, or in the development of several claims held in common, the same principle must apply, whether the labor was performed or the improvements were made in satisfaction of the requirements of said section 2324, for the maintenance of the possessory title, or in fulfillment of the condition to obtaining the paramount title prescribed by section 2325 of the Revised Statutes. While in the one case the annual expenditure in labor or improvements goes only to the right of possession, and is a matter between rival or adverse claimants, the determination of which is committed to the courts, and in this respect is essentially different from the expenditure of $500 in labor or improvements required in the other case as a condition to obtaining patent, which is a matter between the applicants for patent and the government the determination of which belongs to the land department (P. Wolenberg, et al., 29 L.D. 302; Same case on review, Id., 488), yet, in determining whether labor and improvements had upon a mining claim, or upon several claims held in common, are of such a character, and are so situated, as that they may be properly used in the development of the claim, or claims in common, and were so intended, the same principles must necessarily govern in either case.
In Zephyr and Other Lode Mining Claims 12 the department reviewed cases relating to the annual
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work requirement together with the principles of patent expenditures and then observed:13
...obviously, whatever may be credited as labor or improvements toward meeting the requirement relative to annual expenditure may also be credited toward the expenditure required to be shown by section 2325 as a condition precedent to the entry and patenting of a mining claim, it follows that the provisions of the law relating to annual expenditure, and the decisions of the courts construing or interpreting such provisions, may properly be resorted to to determine what expenditure in labor and improvements may be credited to such a claim or claims under that section.
The decision in United States v. William A. Faris14 followed this view in announcing that "[I]n determining the value and availability of the improvement for patent purposes, the same rules should be followed as control the determination of the value of annual work."
An important question arises in connection with the consideration of the relationship between the annual assessment work requirement and the patent expenditure prerequisite. The preferable choice for a mining company would be to use that work which it has already performed on a claim as annual assessment work toward meeting the $500 expenditure as a condition to patent. The question is whether this
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may be done or whether, instead, new work in the amount of $500 must be performed. Very little consideration has been directed toward this question by the department.
The cases of the department seem to assume that the $500 may consist of the labor or improvements performed in satisfaction of the annual work requirements and that an additional $500 worth of expenditures need not be performed. The federal regulations also imply that such is the case.15 Although the department merely looks to whether $500 worth of labor or improvements has been made upon the claim, and sustains the entry if the showing made is sufficient and all other conditions are met, the Supreme Court of the United States has said in dictum that whenever $500 worth of annual labor in the aggregate has been performed the owner of the claim, other requirements aside, is entitled to a patent.16 No cases reviewed indicate that such is not the case.
The character of work performed to meet the statutory prerequisites for patent is substantially
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the same as that required for compliance with the annual assessment work requirement with one statutory exception. The federal statutes include geological, geochemical and geophysical surveys within the definition of "labor" for annual assessment work.17 But by regulation this type of work may not be applied toward the required patent expenditure.18
B. Cadastral Engineer's Certificate
At the time of filing the application for patent, or at any time within 60 days of publication, a lode claim applicant must file with the manager of the land office within which the land is located a certificate of the cadastral engineer of that land office stating that not less than $500 worth of labor has been expended or improvements made upon the location embraced in the application by the applicant or his grantors.19 Form 3400-9 (August 1967) (formerly Form 4-688) is available for this purpose. This certificate is completed after a review of the Certificate of Surveyor20
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and is in addition to the Report of Expenditures after Return of Survey of Mining Claim.21 In addition, if the application includes several contiguous locations held in common, then the certificate must reflect that an amount equal...
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